Depolarizing Legal Conflict

by Hiram E. Chodosh, President, Claremont McKenna College

The following essay by President Hiram E. Chodosh is reprinted from the January 2017 Maadhyam, Council for Mediation and Conflict Resolution newsletter. It is based on many previous publications, including most recently the UNIFORM CIVIL CODE FOR INDIA, PROPOSED BLUEPRINT FOR SCHOLARLY DISCOURSE, (Oxford University Press, 2015, with Shimon Shetreet) 183-244; MEDIATION IN INDIA: A TOOLKIT (United States Education Foundation in India, 2004) (with Niranjan Bhatt and Firdosh Kassam); "From Zero-Sum Conflicts to Federalism: Iraq Offers the International Community a Way Forward," DAILY STAR (July 9, 2009), among others.

I. Introduction

The Chinese character for question (WenTi) is the ideograph of two doors, posed in opposition—one left, one right, with a mouth in the middle, and the primary idea behind the graphic is that by opening our mouth to articulate a question, we can open the opposing doors to new understanding.

So what are these opposing doors, the polarities, the conflicts that should worry us today in an era of globalization? Can we possibly help navigate a fresh path of understanding and responsive action?

While we consider our role (or disengagement) in the world’s conflicts, including some blind spots within our own communities, let’s step into the shoes of some people we may not know.

Imagine you are a religious exchange student in a foreign country and you cannot wear your required garb into the university.

Imagine you and your brother inherited a family farm, and that your fraternal conflict over how to share the burdens of work and the benefits of income is so bad that you have not spoken to one another in years.

Imagine your family home was taken by the government forty years ago and sold off to another group favored by the government. Based on the promise of a change in power, you now wish to return to your family home.

Imagine your water supply for your family has been siphoned off at its source within a state outside your political control.

Imagine your manufacturing job has been eliminated because the company moved its factories to a place with cheaper labor.

If you can imagine yourself in any one of these positions, you will experience a more pronounced emotional response to the conditions of human conflict: conflict over the interaction of religious identity, conflict from the pride of two brothers, conflict from forced separation from home, conflict over historically rival claims to territory, water, or other resources, conflict from the strong forces of globalization, or conflict driven by historic cycles of violence.

Thus, in dedication to the founding of Maadhyam and the organization’s commitment to the people suffering most from the conflicts of our time, I would like to make some modest observations about the nature of conflict, global trends, and rule of law challenges. I also offer a brief description of the three promising strategies for depolarizing conflict in these negative manifestations.

I. The Nature of Conflict

Conflict both reflects and shapes the human condition. Conflict grows from two basic social facts: social difference and interaction. Were we all identical in all respects, we would have arguably no conflict. Were we to never touch one another’s lives in any way, conflict would not occur. It is when we engage each other’s differences in opinions, ideas, values, beliefs, cultural practices, status, identity, power, power over resources that we see conflict.

In turn conflict shapes who we are, it sharpens the sense of self-definition, what ideas I have, values I hold, beliefs I pursue, practices I internalize, my sense of status and identity, the power I feel (or don’t), and the delimitation of the resources to which I have rights are all shaped by conflicts of the past, present, or worries about conflicts of the future. We define ourselves to a large extent not only in affirmative terms but in negative ones—we are who we want to be but also who we are not. We understand our values, beliefs, status, identity in contrast to those around us—the property we own, lineage we have, is delimited by that which we don’t.

Conflict is an indispensable, frequently helpful, creative social process—when we try to avoid it, we internalize an opportunity cost—we leave critically important questions unresolved, including the lines we draw to define ourselves and others. When we engage it, conflict sparks the fire that pushes us to change. The renowned philosopher and music critic Adorno saw success in art as a kind of negative harmony containing inner structures of pure and uncompromised contradictions. Hume taught us that truth emerges from arguments between friends. Dewey urged that conflict instigates invention. In other words, conflict is good.

And as we know all too well, as evoked from the many examples above, conflict is also destructive—costly emotionally, economically, and politically. When violent conflict is viciously cyclical, social groups subject to violence either seek retribution, impose it on others, or develop a victim-mentality that ironically licenses the victimization of others. In these ways, conflict is bad. If conflict then is both good and bad, the challenge for our civilization is clear: to get the best and avoid the worst from conflict. So how do we exploit the creative powers of conflict and then depolarize it to reduce its most deleterious consequences?

II. The Global Trends

For a period of nearly thirty years, dating back to the fall of the Berlin Wall, we have seen a sweeping set of commitments to democracy, private economies, and globalization. To be effective, each commitment presupposes the effectiveness of law-based institutions to achieve three objectives: (1) to monopolize violence while also placing effective limits on concentrations and exercise of state power, (2) to enforce rights and obligations of private contract and property, including knowledge-based, intangible forms of property, and (3) to regulate globalization, intensifications of cross-border exchanges of services, persons, information, capital, goods, and also “bads”—defective products, flaky financial instruments and services, environmental deprivations, terror, and other significant harms.

These commitments set much higher expectations for peace and prosperity around the world, and the legal reforms that crystallize these policy shifts are dauntingly sweeping in new constitutions, new civil rights, new recognition of private contract and property, new permissions to trade and exchange across borders, and transformational freedoms of information and social media. However, as we’ve learned from the Arab Spring and so many other historical examples, none of these policy or legal changes is self-effectuating. Strong institutions (formal or informal, private or public, domestic or transnational) are necessary to implement these policies. Regardless of the preferred institutional design, effective implementation requires the independent resources and political accountability (human, intellectual, technical, financial, even theoretical) to carry out important institutional functions and tasks.

It is thus easy to observe that to realize the potential of our ambition for a law-based civilization, we need both strong and self-limiting institutions: strong enough to monopolize violence and establish basic security, and sufficiently self-limiting to protect established freedoms. It is, however, more difficult to be candid about how well or poorly we are doing. Let’s acknowledge that these nearly world-wide commitments to democracy, private transaction economies, the free exchange of information and expression of identity, coupled with

forces of globalization have put enormous pressure on legal institutions, including courts. Often referred to as the least dangerous branch of government, courts may also be our most tragically neglected in an era when we need them most.

III. The Daunting Problems

We cannot focus on all of these problems in one short essay; however, a scan of the broader context is vitally important. Three complex problem-sets absorb our attention and call for an effective response: the political and security challenge of liberalizing repressive regimes without unleashing sectarian violence; the adjudication of cross-border and internal legal conflicts that stem from the powerful forces of globalization; and the challenge of resolving myriad public and private claims under the rule of law in increasingly democratic systems, private transaction economies, and free societies.

A. SECTARIAN CONFLICTS

Our civilization faces an overlay of severe sectarian problems, not only within the Middle East, but extending from Xinjiang, China to the Basque region of Spain and many other troubled regions. The large challenge for our civilization is how to coexist within close proximity (within the same territory, region, or country or just on the same shrinking planet) with peoples of diverse language, culture, religion, power over resources, and identity, often shaped by powerful historical narrative or recent experience of victimization by the other. As noted earlier, we may gain a sense of inspiration, place, and purpose from separate cultural or national or religious identities; however, these identities may also carry a zero-sum logic in which the mightier wins, and in which empathy for the other is viewed as a betrayal of oneself and one’s own kind.

B. CONFLICTS OF LAW

Beyond sectarian violence, globalization has also intensified conflicts of law and policy within and between the community of nations. Conflicts of law emerge from the combination of two basic phenomena: (1) the existence of two separate jurisdictions, each with its own sovereign right to structure laws according to basic policies and values, and (2) cross-border exchange between them, such that it is unclear which of the two normative systems should govern. In a world of intense cross-border exchange, whose rules of contract should prevail? In a knowledge-based economy and the growing recognition of intellectual property, whose law should govern? In growing global labor markets, whose employment law protections should apply? In a global financial market, whose tax rules should take priority? Public and private international law provide overarching frameworks; however, domestic legal systems carry the primary responsibility to resolve these many issues.

C. CONFLICTS UNDER THE RULE OF LAW

Civil claims against governments, private claims between citizens, criminal prosecutions, transnational commercial disputes are all on the sharp rise over the past twenty years, especially in the developing world where some of these political changes are most dramatic. These trends have brought enormous challenges to courts, who are trying to measure up without sufficient support from governments or the underlying society. Five severe problems confront modern court systems in democratic, free-market societies: delay, corruption, political interference with judicial independence, torture (or other forms of psychological coercion), and pre-trial detention (known in India as undertrial).

Without creatively designed and intensely implemented interventions to address these challenges, the rule of law will ring hollow for the greater number of people living within the world’s legal systems.

IV. Depolarization Strategies

What to do? The foregoing observations of sectarian conflicts, conflicts of law, and the sheer quantity and quality of conflicts within the rule of law are daunting. Are there any promising institutional designs, neutral principles, or social strategies capable of providing some relief?

As I have written about these strategies in more depth elsewhere, for purposes of this inaugural publication, I would like to sketch briefly what I believe to be the three most promising pathways for addressing each of the foregoing problem-sets: federalism as a response to sectarian violence; comparative harm principles as an approach to conflicts of law; and mediation to address myriad legal conflicts under the rule of law.

A. FEDERALISM OR SUBSIDIARITY

In the Middle East and other difficult places, is there an alternative to inertia, violent conquest, or partition in dealing with sectarian conflict? Yes, there’s one additional vertical political strategy that establishes a political condominium of power, one in which each group has its own qualified sovereignty but can also work together at a higher institutional level to protect and influence one another. From the differentiation of the township to the county or state, from the distinction between the province and the nation, the notion of federalism in the United States and the concept of subsidiarity in the economic and the political unification of Europe reflect attempts to capture this vertical political strategy. Through these means, an Italian can be a European, a Quebecois can be a Canadian, and so on.

Federalism, whether in India or the United States, is an experiment of consequential interest to our civilization, from North America to Europe, from Asia to the Middle East, to see if a society riddled by sectarian and other forms of conflict can reject the hideous alternatives of conquest, genocide, and partition. We should all favor a vertical political strategy that accommodates self-determination of our diverse communities against a common denominator of shared values and purpose. Federalism provides that larger political and legal framework for facilitating and negotiating compromise.

B. CONFLICTS OF LAW AND COMPARATIVE HARM

Going back millennia, human civilization utilizes several distinctive strategies to deal with conflicts of law—each approach features its own tradeoffs. We use choice of law doctrines based mainly on territorial, personal, and universal principles—giving rise to legal arbitrage and uncertainty in application.

Within the array of choice of law doctrines, the lesser-known principle of comparative harm may provide a promising pathway to resolving conflicts where the underlying normative framework is itself in dispute. Under the comparative harm approach, the competing harms to each group of applying the other’s law are weighed against one another. Comparative harm is a humble twin to the principle of comparative advantage— the notion that collective interests can be advanced by having competitors in trade do what they do best. Conversely, comparative harm chooses that imperfect solution that does the least injury to one of the conflicting parties or groups.

Now, obviously, it is extremely difficult to quantify and weigh competing harms. Harm, it may be said, is in the heart of the beholder. Stated otherwise, there is no objective measure for the intensity of harm or offense, especially when each community sees the issues very differently. The problem with the doctrine of comparative harm in conflict of laws is that the forum usually sees the foreign harm as less than the interest of the forum in having its own law apply.

Unlike many competing principles, however, comparative harm does not prefigure any specific outcome. Comparative harm also requires an institutional process. To determine comparative harm, persons or groups in conflict must communicate to one another their perceived injuries (if the unfavorable rule applies). This process of communication, mutual articulation of injury, and the comparisons of them facilitate the kind of process that is more likely to lead to positive outcomes. Even short of a solution, the mere fact of joint communication according to a neutral principle, active listening and engagement of perceived harms, the articulation of subjective weights, and even an attempt at integrative bargaining between communities would mark substantial progress in inter-community understanding and trust. This leads us to mediation.

C. MEDIATION

Beyond massive court reform that heeds the call for more judges, more courts, more lawyers, mediation (and the communication tools and negotiation strategies that fall under its rubric) provides a promising alternative strategy for dealing with conflict in society under the rule of law.

Put simply, mediation denotes the series of skills that falls under the functions of facilitated negotiation. Facilitation includes the establishment of joint communication, neutral reframing, agenda setting, acknowledgment and several other important communication strategies and tactics. Negotiation tools include distributive, interest-based, integrative, and other strategies. Specific attributes clustered together in mediation systems vary greatly.

Mediation does not come as an unchangeable recipe or rigid system. Indeed, one of its most attractive features may be its flexibility (and thus its consequential adaptability). Overly prescriptive or doctrinaire views about the essentials of mediation risk undermining this important feature. Furthermore, rigid recipes may preclude experimentation with independently fruitful communication and negotiation tools that may be incorporated into an emerging, Indian mediation process. Each tool may have its own considerable value or application.

Disaggregation of the varied tools of mediation has allowed for a particularly promising Indianized form of mediation to grow and become more deeply internalized. Internalization of mediation into the Indian legal culture has had benefits beyond the formal legal system. Because each of these tools may be used outside of a third-party mediation, or even outside of a bilateral negotiation, the internalization of these behaviors creates a more collaborative ethic and attitude toward not only law practice but all human conflict. Spouses and siblings who do not speak to one another can hardly resolve their problems. Neighbors (including landlords and tenants) in dispute who do not negotiate can hardly reach agreement. The more these tools can be used on a day-to-day basis, the less the society will have to rely on the courts (or annexed mediation or other forms of dispute resolution) to solve their problems.

An inspiring example of India’s creative internalization of these tools is reflected in an early story of a mediation in Samadhan (the Delhi High Court mediation center), which recently celebrated its 10th year anniversary. A young advocate known for his talent in helping recalcitrant parties come together in settlement was faced with a very difficult case: two brothers, one much elder, who would not even acknowledge the presence of the other. The father had died at a young age, leaving substantial property holdings to the two boys. The elder brother took sole responsibility for the burdens of the family, and he and his wife raised his younger brother (almost as a son). Over the years, understandable resentments grew and conflicts over resources and revenues became especially divisive, such that they would not even be in one another’s presence, and the family business was suffering badly.

The mediator scratched his head: what could he do? He then told the brothers that it was a custom of the center when family members were present to have the younger show respect to the elder through the social rite of touching the elder’s feet. The younger brother resisted, so the mediator went to the elder brother and touched his feet, thus compelling the younger brother to follow. When he did so, the brothers embraced, and the elder brother began to weep, exclaiming that all he’s ever wanted is for his little brother to respect him. Remarkably, he then offered the younger brother whatever he wanted, and the mediator proceeded to help them come to an equitable agreement going forward.

V. Conclusion

If we are ever to succeed in depolarizing conflict (to take the good and avoid the bad), we must continue to investigate and test the value of new institutional structures (federalism), conflict of law principles (comparative harm), and consensual tools of conflict resolution (mediation).

We must do so arm in arm, with humility, with greater empirical familiarity and theoretical coherence, through mining deviant success through our dysfunctional failures, and always learning, with a critical focus on building our own educational capacity to close capacity gaps where they are most critical.

Even though it may seem there is no hopeful way forward, remember the words of Lu Xun, the great Chinese author during the Republican, inter-war period of China. Hope, he said, is like a road on the earth. At first there were no roads, but when many people walk in one direction, a road is made.